scholarly journals Theory of International Commercial Arbitration Behind Foreign Corrupted Islamic Investments

2021 ◽  
Vol 1 (1) ◽  
pp. 216-245
Author(s):  
Lafi Daradkeh
Keyword(s):  
Theory And Practice ◽  
Commercial Arbitration ◽  
Foreign Investors ◽  
International Commercial Arbitration ◽  
The Core ◽  
National Courts ◽  
Islamic Investment

This article examines the core outlines of commercial arbitration and its relationship with corruption in Islamic investment contracts. It deals with the issue of misuse of arbitration to cover some practices of corruption in such contracts in theory and practice. It answers why commercial arbitration may encourage foreign investors to indulge in corruption regarding Islamic investment contracts for private gains. It also proves how some rules and doctrines of commercial arbitration can be used to supersede the national laws and the jurisdiction of national courts to avoid combating such type of corruption. It examines these facts through some practices of arbitration that illustrate the misuse of arbitration in concluding such contracts.

Emergency Arbitrator: Indian Prospects

LAW REVIEW ◽  
2018 ◽  
Vol 38 (1) ◽  
Author(s):  
Dr. Ashish Kumar Srivastava
Keyword(s):  
Dispute Resolution ◽  
Third Parties ◽  
Real Problem ◽  
Anglo Saxon ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
High Courts ◽  
Interim Measures ◽  
Indian Perspective

International commercial arbitration is one of the most favourite mode of dispute resolution in world for resolving commercial disputes. Speed and cost are two important features what makes arbitrationa sought-after mode for dispute resolution because in conventional dispute resolution by courts ‘Remedy becomes worse than malady’ due to delay and cost. Legalism and authoritative courts in Anglo Saxon societies make the justice dilatory and expensive which is termed analogically as a disease of ‘Adversariasis’. Judicial minimalism is encouraged by entrepreneurs and business class of world which results in enhanced thrust on international commercial arbitration. In any arbitration interim measures are sine quo non. The irreparable loss and balance of convenience demands intervention by authoritative body to order and issue processes which can binds parties and third parties. In such cases unless interim measures are sought by municipal national courts no effective and binding interim remedies can be granted to the parties and third parties. The arbitrator once appointed is competent enough to grant interim measures and it can also decide about its jurisdiction based on doctrine of Kompetenz-Kompetenz. However, if before the appointment of arbitrator, the need of urgent interim measures arises then obviously parties have to go to the municipal national courts but this judicial intervention is not the intent of parties as they are seeking judicial minimalism. In such situations the urgent interim measures can be granted by emergency arbitrator. The Arbitration and Conciliation Act, 1996 is silent about emergency arbitrator but Delhi and Bombay High Courts have given some pragmatic judgments, making the provision of emergency arbitrator, a reality. The real problem in emergency arbitrator is how one can grant interim relief even without being in existence i.e. when arbitrator itself is non est. ICC, SIAC and LCIA provide for emergency arbitrator. In this paper the author has tried to make an analytical and comparative overview of emergency arbitrator in Indian Perspective.

Intellectual Composition of Arbitral Tribunals According to the New Saudi Arbitration Law

2019 ◽  
Vol 33 (1) ◽  
pp. 99-108
Author(s):  
Reyadh Mohamed Seyadi
Keyword(s):  
Saudi Arabia ◽  
Significant Feature ◽  
Arbitral Tribunal ◽  
Legal Tradition ◽  
Kingdom Of Saudi Arabia ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Model Law ◽  
Law Degree

Abstract One significant feature of arbitration that distinguishes it from litigation in national courts, is the parties’ freedom to select the arbitrator or members of the arbitral tribunal familiar with the kind of dispute that might arise or already has arisen. In 2012, a new arbitration law was issued in the Kingdom of Saudi Arabia (KSA) inspired by the texts of the Model Law on International Commercial Arbitration. In all its provisions it included the requirement not to violate Sharīʿah law (Islamic legal tradition). However, according to this law, the sole arbitrator or presiding arbitrator must hold a Bachelor of Laws (LLB) or Sharīʿah law degree. This provision is mandatory, and the parties cannot agree otherwise. This article seeks to provide some thoughts on this restriction through an analysis of arbitrator qualifications under Sharīʿah law in order to provide a better understanding of the position adopted by the KSA Arbitration Law.

Part V International Dispute Resolution, 19 International Commercial Arbitration

2015 ◽  
Keyword(s):  
Dispute Resolution ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
National Courts ◽  
International Dispute ◽  
Recognition And Enforcement ◽  
Model Law ◽  
The Relationship ◽  
Distinguishing Features

This chapter examines the nature of international commercial arbitration and its distinguishing features; the harmonisation of the law of international commercial arbitration; international arbitration and the conflict of laws; the review of arbitral awards; and the recognition and enforcement of arbitral awards. Consideration is given to the contribution made by the UNCITRAL Model law on International Commercial Arbitration and to the rules of various arbitral institutions (such as the ICC) to the harmonisation of arbitral law and practice. Also examined is the relationship between arbitration and national courts and national law, particularly in the context of the debate over delocalisation.

scholarly journals INTERNATIONAL AGREEMENTS FOR THE PROTECTION OF FOREIGN INVESTOR

2017 ◽  
Vol 3 (4) ◽  
pp. 99-105
Author(s):  
Ирина Хлестова ◽  
Irina KHlyestova
Keyword(s):  
Russian Federation ◽  
International Agreements ◽  
Most Favored Nation ◽  
Foreign Investments ◽  
Legal Concept ◽  
Commercial Arbitration ◽  
Foreign Investors ◽  
International Commercial Arbitration ◽  
The Russian Federation ◽  
Definition Of

The article is devoted to the analysis of international agreements on questions of protection of foreign investments. The multilateral agreements are investigated in the indicated area. There is a detailed analysis of agreements concluded originally by the USSR and then by the Russian Federation. The author draws attention to the lack of a unified approach to the definition of the concept of “foreign investment”, which has evolved over time. It is argued that both national and foreign investments are an economic category and there is no single legal concept for them, similarly with respect to the definition of the term “an investor”. The guarantees to the foreign investors by virtue of bilateral international agreements on protection of foreign investments are investigated, in particular: most favored nation treatment, national treatment, payment obligation for compensation in case of nationalization, expropriation and other measures that have analogical characters, permission of disputes between an investor and a state accepting investment. The author comes to the conclusion that in international law there is no ordinary norm about investment disputes settlement by international commercial arbitration. The author analyzes changes to the Law of the Russian Federation of July 7, 1993 No. 5338-I on International Commercial Arbitration introduced as a result of the adoption of the Federal Law of December 29, 2015 No. 409-FZ. The article highlights the influence of state courts on the activities of international commercial arbitration, the expansion of the competence of international commercial arbitration and the filling of gaps in the 1993 Law on International Commercial Arbitration. The author believes that the expansion of the use of international commercial arbitration bodies ensures the creation of conditions to protect the interests of foreign investors.

scholarly journals Reforming the Legislation on the International Commercial Arbitration of Ukraine: Realities or Myths

2021 ◽  
Vol 4 (3) ◽  
pp. 117-128
Keyword(s):  
Dispute Settlement ◽  
The Other ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
The One ◽  
Intergovernmental Organisations

International commercial arbitration (ICA) is an alternative way to resolve foreign economic disputes. Initially, arbitration itself was seen as a neutral court in which the parties to the dispute were independent of national courts. Arbitration agreements and decisions must be recognised by national courts without any complications or review procedures. Although granting commercial parties some independence to agree that their dispute will be considered by independent arbitrators is a key principle in ICA, the struggle for supremacy between national laws and national courts on the one hand and the autonomy of the parties and the independence of the international arbitration system on the other continue. Over the years, national laws have sought to control, regulate, interfere with, or support ICA in various ways. To counter attempts to ‘localise’ ICA and promote equality in this area, private, professional institutions and international and intergovernmental organisations have developed a significant body of law designed to ensure self-government and dispute settlement procedures in ICA. Nevertheless, international commercial arbitration cannot exist independently of national jurisdictions. Examining the activities of ICA, it can be seen that the importance and impact of national arbitration laws and national judicial supervision are significantly reduced, but the lex fori still plays an important role in arbitration. Thus, the reform of the normative regulation of international arbitration also affected Ukraine. The article analyses the radical changes proposed by the legislator regarding the procedure for establishing institutional arbitrations, expanding the arbitrability of disputes.

scholarly journals NEWLY REFORMED PROCEEDINGS OF THE ARBITRATION AWARDS REVIEW AND INTERNATIONAL COMMERCIAL ARBITRATION AWARDS APPEAL IN CIVIL PROCEDURAL LEGISLATION OF UKRAINE

2019 ◽  
pp. 29-35
Author(s):  
Yu. Prytyka ◽  
D. Prytyka
Keyword(s):  
Judicial Review ◽  
Arbitral Tribunal ◽  
Unified Approach ◽  
Interested Party ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Time Limits ◽  
National Courts ◽  
Initial Stage ◽  
Legal Nature

This article deals with the novelties of the reformed procedural legislation of Ukraine on appealing the decision of arbitration court and international commercial arbitration, as well as on new approaches to determining the legal nature of the proceedings in cases of appealing arbitration awards. At the same time, this study shows that the specific practical problems of a unified approach to terminology absence, in particular, "appeal" by arbitral tribunal or "challenge" by international commercial arbitration, still remain. In this article the problems of determining the objects of appeal and the expansion of the range of subjects of appeal against the decisions of arbitral tribunals, as well as the disputable issues, determining the jurisdiction of this category of cases are also considered. Special attention is paid to the examining the procedure for reviewing applications for annulment of decisions of the arbitral tribunal and international commercial arbitration, in particular the initial stage of production, time limits for challenging the arbitration award. Taking this into account, authors identify the ways to resolve the abovementioned practical problems, as well as the prospects for further reform of the judicial review institution over the enforcement of arbitral tribunals and international commercial arbitration decisions. In conclusion, authors prove, that the activity of national courts does not include the revision of the decisions of arbitration courts and international commercial arbitrations, since national courts do not check the legality and validity of the decisions; they do not review the substantive decision. In this case we consider a special mechanism for the control over the abuse of arbitrators' powers granted to them by law and by the parties to the arbitration agreement during the dispute resolution.The purpose of an appeal is to provide the interested party with the opportunity to apply limited judicial review of the arbitral award.

5 Impartiality and Independence of Arbitrators and Arbitral Institutions

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Potential Candidate ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Core ◽  
International Court ◽  
Recognition And Enforcement ◽  
Objective State ◽  
The Law

This chapter assesses the concept of impartiality and independence. The Law on International Commercial Arbitration provides that the potential candidate for the appointment of an arbitrator must disclose any circumstances that may cause a well-grounded doubt regarding his impartiality or independence in writing. In cases where the competent court, appoints an arbitrator, in the absence of the agreement between the parties, the court must ensure that an independent and impartial arbitrator is appointed. Independence and impartiality in Russia are not issues limited to arbitrators. The core of the issue is the independence and impartiality of arbitral institutions.Independence is understood to be an objective state of an arbitrator in the absence of any relationship with a person or circumstances which affect the arbitrator’s decision. Impartiality means that the arbitrator is not, directly or indirectly, interested in the outcome of the case and does not have preference or other prejudice in relation to a party, his representative, expert, or witness. Russian courts have ruled on the impartiality and independence of arbitrators as well as arbitral institutions in an inconsistent manner. In 2010, the International Court of Commercial Arbitration (MKAS) adopted a document entitled Rules on Impartiality and Independence of Arbitrators. Apart from being a guidance for arbitrators and the parties, this document is expected to give guidance to the courts when facing an application for setting aside an award and the refusal of recognition and enforcement of awards of international commercial arbitration on the grounds of the absence of impartiality and independence.

scholarly journals The Validity, Effectiveness, and Enforceability of an Arbitration Agreement: Issues and Solutions

2021 ◽  
Vol 4 (4) ◽  
pp. 116-130
Author(s):  
Serhii Kravtsov ◽  
Nelli Golubeva
Keyword(s):  
Law Enforcement ◽  
Foreign Trade ◽  
Dispute Resolution ◽  
Trade Agreement ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Logical Conclusion ◽  
A Priority ◽  
The Law

The main reason for dispute in international commercial arbitration is the existence of an arbitration agreement concluded between the parties to a foreign trade agreement. The procedure of dispute resolution in international commercial arbitration will depend on the extent to which this arbitration agreement is concluded correctly in accordance with the norms of international and national law. Quite often, in the law enforcement activities of both national courts and arbitrations, there are questions about the validity, effectiveness, and enforceability of an arbitration agreement. In different countries, this issue is addressed ambiguously. In one case, national law takes precedence, and, accordingly, national courts are empowered to consider the validity, effectiveness, and enforceability of an arbitration agreement. In other cases, however, the autonomy of the arbitration agreement is a priority aspect of the consideration of any procedural issues by international commercial arbitration as the only and indisputable body authorised by the parties to the foreign trade agreement to consider a particular dispute. The article analyses doctrinal and legislative approaches to this issue, in which the authors come to the logical conclusion that national courts do not consider the validity, effectiveness, and enforceability of an arbitration agreement.

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